The last couple of weeks, editorial writers, local elected officials and even some environmentalists in the North Country have chastised green groups and Tupper Lake seasonal residents for suing the Adirondack Park Agency, in an effort to overturn the permits green-lighting the Big Tupper resort project.

The suit has been described variously as cynical, frivolous, arrogant and as a downright cold-hearted blow to Tupper Lakers who are trying to revive their battered economy.

Let me say that I have absolutely no opinion about the ultimate legal merits of the suit.

I don’t know how the case will be decided, though most of my sources have suggested that the court will likely give a lot of deference to the Park Agency, given the lengthy review and the lopsided vote by commissioners in favor of the permits.

But I think it’s worth noting that Article 78 lawsuits of this kind can play a valuable — indeed, a crucial — long-term role in shaping how government agencies in New York state and the North Country conduct their business.

Here are three reasons why this court case is a legitimate step in the Big Tupper review process.

Claims of secret talks

First, green groups have raised a specific allegation that state officials colluded unfairly with the developers of the resort, violating strict “ex parte” rules that were designed to limit undue influence over the process.

The APA and the developers deny this vehemently, but it’s a serious claim.

In the past, pro-development and local government groups have raised similar allegations about unfair conversations and backroom deals between the state and green groups.

The Adirondack Park Local Government Review Board’s Fred Monroe successfully urged the state Attorney General’s office to probe claims that the DEC, the APA and the Adirondack Nature Conservancy were hammering out “sweetheart” land deals behind closed doors.

The AG’s office looked into the matter and found nothing untoward or inappropriate.

It may well be that these allegations regarding the ACR decision, raised by environmentalists, will be discounted by the courts in similar fashion.

But if one side in the Park’s debates wants its concerns about secret talks and unfair treatment to be taken seriously, it stands to reason that the other side should also get some attention when it raises the alarm.

A lawsuit or a rallying cry?

Critics of the lawsuit have suggested that the court fight is being used by environmental groups — specifically by Protect the Adirondacks — as a way to raise public awareness, build membership, and raise money.

I can confirm this. I asked the suit’s backers this question point-blank and prominent activists, including Bob Glennon, acknowledged openly that they hope attention attracted by litigation will mobilize new support for their cause, particularly outside the Adirondacks.

Cynical? Maybe. But there’s nothing new in this. All sides in the Park’s debate have used litigation, and the legal process, as a way to draw attention to their concerns and agendas.

Essex farmer Sandy Lewis made a lengthy legal battle with the APA the centerpiece of his campaign to highlight what he considered bureaucratic overreach by New York state.

Lewis — and his supporters — appeared repeatedly on an Albany AM talk radio station, portraying the legal dust-up as part of a much wider fight for property rights and Park reform.

Which doesn’t mean that groups like Protect don’t also believe that their case has legal merit. After conversations with the attorneys who filed the suit, I came away convinced that they believe that they are in the right and will prevail.

Defining the terms of engagement

Finally, the Lewis and McCulley cases highlight another potential value of court cases like this one.

Legal battles often clarify the terms of fuzzily written state regulations.

In Lewis’s case, state officials were given clear new parameters by the courts, with a judge confirming that the APA has very little oversight over farm-related projects.

Other recent lawsuits in the Adirondacks have helped to clarify a wide range of issues, from navigation rights on rivers, to the legal status of lake- and river-bottoms adjacent to state-owned forest preserve, to DEC management of state-owned roads in the Park.

It may be that in this case will do the same, offering, new legal insight into sketchy and ambiguous terms in Park regulations that have baffled all sides in the debate for decades.

What exactly does “clustered” development mean? Is it appropriate (or not) to consider the potential financial benefits of a project when evaluating whether the impacts of new construction on the environment are “undue”?

Was it possible to conclude scientifically that there would be no “undue adverse impacts” from a project of this size and complexity without doing some kind of comprehensive wildlife survey?

Hopefully, this suit will serve to shed some light on those questions.

It’s far from certain, of course, that any new legal precedents will be to the liking of the environmentalists and neighbors who brought this lawsuit.

On the contrary, a final ruling in this case could well go the other way, confirming the APA’s current approach to residential development on the Park’s privately-owned timberland — an approach that pro-development forces favor.

All of this will be cold comfort to Tupper Lakers exhausted by years of uncertainty. Supporters want this project to move forward as quickly as possible.

And hopefully the court’s review will be expeditious. But unpopular as it is, this stage of the Big Tupper process may well serve the long-term interests of the Park and its communities.

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I am opposed to all law suits directed against federal, state and local governments because they all cost tax payers money.
If they are allowed, the total cost should be paid by those who are doing the suing.

Very well stated Brian. The bottom line is these types of decisions stir emotions. I didn’t think Jim McCaulley stood a snow balls chance in North Elba but he was legally correct. It was a surprising and fantastic victory. While unpopular, we have to respect these parties right to legal action, as unfortunate as that may be.

“Is it appropriate (or not) to consider the potential financial benefits of a project when evaluating whether the impacts of new construction on the environment are “undue”?”

Seems perfectly fair as long as there is due consideration to the fact that most developments never meet the original build-out goals and that many never even see the light of day after the approvals are granted. There must be some financial consideration given to loss of habitat, loss of public access, costs to municipalities for providing services etc.

There are plenty of examples of some clowns rolling into town with a dog and pony show and then rolling out of town with full pockets at the expense of residents who got nothing but cotton candy, and pony poop.

The “legal basis” is only this: Just because a lawsuit has political dimensions doesn’t automatically mean that the suit is illegitimate. There is a long history of politically motivated litigation, filed by people on all sides of the Adirondack Park’s debate…and some of those suits turned out to have real legal merit.

Brian: I agree, but It appears to me this this suit has little merit and is proceeding for reasons I question. I hope the state will publish the cost to fight this to all tax payers. They might think twice before joining these groups. Pick your battles in life carefully!

Thanks for putting this out there. I believe the reasoning behind this decision is shoddy and did not follow the rules that the APA has set for itself. We need outside groups to hold government accountable, and lawsuits are a good way of getting attention.

Which is not to say that I’m rooting for it to be overturned. The APA decision was made, and we move only on, not backwards. But close examination of the decision making process is an important step before the next big development comes along.

The Jim McCulley Old Mountain Rd X-country ski trail analogy is a good one. The rules weren’t followed to the letter which seemed perfectly sensible if you agreed with the decision. The law suit cost the state a lot of money and lawyer time, but at the end of the day the rules hadn’t been followed to the letter, and that’s what the courts are for.

Let me explain why I don’t like law suits such as this beyond what they cost tax payers.
Law suits of this nature are an attempt to overrule democracy. If you don’t like the way the law works, try to change the law.
Now for my conservative friends. Have you ever thought how the Supreme Court itself is a a violation of democracy in that it is the strongest branch of government that is not elected by the popular vote of the people?
Yes, I know they are appointed by people we elect. But how would you feel if Senators got to appoint people to Congress or the President got to appoint people to both Congress and the Senate?

Brian, A broader question would be not whether this lawsuit is legit or not but as you say will this lawsuit really clarify the terms of fuzzily written state regulations and offer new legal insight into ambiguous terms in park regulations. My sense is this lawsuit will not be the end all be all of the ambiguity in the APA regulations. An elven member board interpreted the regulations and now a court will do the same. What really is needed is drastic change in the APA statute and that should be handled by the legislature in Albany.

The lawsuit is of course legitimate. The APA was supposed to base their decision on the record developed in the Adjudicatory Hearing. The decision was obviously not based on the evidence in the record. If that proves true then the decision needs to be overturned and maybe then the APA can go back and actually look at ALL the eveidence to make their decision. All evidence needs to be examined in order to make a fair determination, not just selected snipets presented to support one side of the record.

Loradk, Be careful when you use the word civilty in reference to this legal challenge. It was one of the Plaintiffs and Attorney in this matter Bob Glennon who is quoted as saying “He was looking forward to entering the Adirondack Wars”.

A quasi-judicial state agency has no obligation to base its decision on all of the evidence presented at the hearing. It has the right to reject what it finds not credible and to base its decision on what evidence remains. An appellate court has no discretion to overturn the decision of the agency in arriving at a determination as to what is, or is not credible. The lawsuit will fail.

News coverage of the lawsuit on the ACR project has been disappointing, to say the least, and I reluctantly include NCPR in this criticism. This blog does (finally) identify a few of the 27 legal issues posed by the Article 78 petition. There are, however, other important issues raised by this appeal, all “legitimate” and far from “frivolous”. (I found the full text of the petition on the website of Protect the Adirondacks.) I note the following additional allegations by the petitioners:

– The Agency acted in violation of its own rules when the senior staff presented extensive summaries and power point arguments before the Members’ vote, without allowing the hearing parties an opportunity to comment in writing.

– The Agency failed to make the detailed findings of fact and conclusions of law required by law and regulation sufficient to explain its final approval decision. It did not make any citations to the hearing record and simply recited one generic conclusion that the project complied with the law.

– The Agency failed to make the specific finding required by its own wetlands regulations in approving the use of Cranberry Pond (with class “2” wetlands) for snowmaking and, in fact, cannot legally allow that proposed use of wetlands because there is an available alternative (which the Agency itself determined was preferable).

– The Agency failed to make any specific rulings on the proposed findings of fact and conclusions of law submitted by several parties to the hearing, in violation of an explicit legal duty to do so.

– The Agency improperly concluded there would be no undue adverse impact on municipal services by relying on inadmissable evidence and outdated, incorrect information. Specifically, it erred in concluding that the Franklin County IDA will fund the project through bonds when a 5-year-old letter from bond counsel and IDA minutes clearly indicate otherwise.

– The Agency justified inadequate wildlife studies (so described by experienced experts and its own staff) based on an Agency “policy”, identified at the last minute, which was not part of the hearing record, not known to the parties, unknown to the public, and never properly adopted as an Agency regulation as required by law.

– The Agency acted in violation of the APA Act by allowing environmental impact studies to be performed AFTER it voted for project approval and permits. This process deprives the hearing parties of oppportunity to review the studies, cross-examine the preparers under oath and present rebuttal testimony in the adjudicatory hearing and deprives the Members of a full record to consider in making their decision. This after-the-fact approach to environmental studies makes a mockery of the hearing process and has resulted in a project approval which is arbitrary and capricious.

– The Agency improperly approved subdivisions of lots and new development on land classified Resource Management when the project application did not include “carefully selected and well designed sites” as required by the APA Act. Instead, the decision and permits allow the developer to prepare entirely new plans to meet this requirement.

– The Agency improperly approved a commercial use (valet boat launching) at a State boat launch site on Tupper Lake, in violation of the constitutional prohibition against commercial uses of the Forest Preserve.

– The Agency improperly approved a valet boat launching operation at a State boat launch site when the application itself shows that 49 of 50 daily launches (the site capacity) will be for ACR residents, thus monopolizing the site and adversely affecting public use.

Bob S, Interesting comments on quasi-judicial state agency. I also think it would be beneficial for people to look into the State Administrative Procedures Act (SAPA) to maybe further understand why the APA did what they did. SAPA also comes into play here.

Dewey,
If you are suggesting I am opposed to judicial review, you are incorrect. It is the appointment of judges I question because it is the only branch of government not elected.
I guess the argument to appoint is based on the idea that the average voter does not have the competence to select judges and only “our betters” are capable of making the selection.
If this be so, are we then incompetent to vote for the President the Senate and members of Congress?
I would also add that I don’t support life terms for the Supreme Court. They should be forced to retire by age 70. I would also like to see 70 as the maximum age for any government office, elected or otherwise.
If they need more money, they can always become commentators on TV.

Pete-
The logic behind appointing judges is to remove them from the political process. Do we want to see campaigns for the SCOTUS in which each judge tells us which laws they think are bogus and how they will strike it down at the first possible moment?

Some states do have elected judges (as we do on the local level.) The tidal waves of money flowing into these races since Citizens United is a chilling reminder of the law of unintended consequences.

It was clear the founders did not entirely trust the populus. Look at electoral college, which amazingly is still in place. Senators were “elected” by sate legislatures prior the the 17th amendment. The life terms of the supreme court is part of the crucial balancing act to our gov’t. They never can be swayed to give a decision for political reasons or to favor re-election. In historical defense of the system, the “betters” as you call them, have been ahead of the populus many times and pushed for legislation long before those beliefs were a consensus with the general population. Slavery, Women rights, segregation, gay rights were all unpopular decisions legislated long before the majority of the populus supported them. As far as the electoral college, thank god for that, where would be today of Al Gore had been elected in 2000?

I can’t understand why you want a forced retirement age of 70, as if senility automatically kicks in. The greater ones life experience the wiser they become and the more one has to draw upon to make a decision. The founders recognized this which is why there are minimum ages but no maxis. With better health care and medical knowledge people are functional mentally and physically much longer than the past.

I agree that there is an undercurrent here about money. Protect the Adirondacks! is pursuing their lawsuit like an “Action alert” to raise money. Those who would legitimately develop their adirondack land holdings can see that the APA will cost them so much that only a huge project like this one will be able to break ground because of the economic scale required by the regulating agency’s demands for the expenditure of time and money. The people of Tupper just need money.

Those who are behind this suit are only doing it so that there will eventually be nothing BUT a park in the Adirondacks with a few RICH folks that have their nice summer homes here. I live here year round and fight living expensive, but manageable. If these part-time residents win their suit and the resort is shut down I really don’t think us full-time residents could afford to live here. Shops will close, people will leave, and there will not be much left. I don’t know about you folks, but I plan on dying here. I grew up here and want my kids to do the same.

Its almost like that group that wants the Train tracks dug up. Thats a crock too. When the tracks are dug up, whose to say that it stays classified as transportation right away and the private lands owners that have land that runs on both sides of the tracks are not going to close that area off.

I’ve wrangled on this several times and done multiple re-writes so it may be too late to offer.

The faliure to close a road to the public is not the same as taking of rights from private property owners without compensation. The public road was established for community use and a process existed for closure. It is a right of way, not of ownership to the center of the earth. When the right is extinguished no legal interest remains. Adjoiners benefited from the common access. Those who have no business purpose on a dead end road don’t need to be on the road but may be there if it is still a legal route to the public.

The state sold land 200 years ago to raise funds and get settlers to take interest in the space. The public divested itself of ownership when the land was sold. If I understand it New York did not even provide for access to tracts sold. It is private property.

As time passed third parties have worked to walk back fee ownership by imposing restrictions on use. In the OWD property case by limiting the number of structures and imposition of studies with no finite date for a firm decision. These are uncompensated takings of value from the property.

If these third parties want the land, buy it. Put enough money down the so owner deals or if he declines to sell, suck it up and go home. Otherwise this process is death by a thousand cuts.

What evidence exists to the claim of secret agreements? The AG thought none. Of i’s were not dotted or t’s crossed there may be a legitimate case unless discretion is allowed by the law to the decision makers and if so they have decided.

Jeff, as far as I understand it right-of-way was established not so much for the benefit of property owners or business use but as a basic right of the lowest member of society to move from one place to the other. In our country it traces back to English Common law and the Magna Carta. Before that time serfs had little legal status and landowners could essentially hold serfs as slaves because serfs had no right to cross the Lords’ property without permission.

The concept of public interest in private property rights is a different issue. There is a recognition that no property exists in a vacuum, that the effects of activity on one property affects other properties and the rights of other people.
For instance, clear cutting a property can lead to soil erosion and run-off into streams which would kill the fish which are a public asset, and it can lead to forest fires that burn other people’s property or kill people and wildlife.

Knuck
In earlier times a public thorofares had to be established. Turnpikes for instance are evidentiary, as the landowner who maintained a section of road charged a fee for use of that road.

I agree the public interest in activities on private land is different and it is evolving- was very limited when the state sold the land. But it is not reasonable to expect an owner to give up opportunities without compensation.

Clearcutting is fine if properly practiced and is used at times intentionally for enhancing outflow of water in public water sheds. Yes, improperly applied it can lead to external damage. People don’t like the way it looks. Regulations like top lopping to more quickly bring about decay of debris are for softwood forests. The wind caused destruction of the area south of Cranberry Lake put down more debris than clearcuts leave and that timber was never removed- despite fire potential.

I personally believe that this has gone on long enough, the APA process was exhaustive and the correct decision was made. I am very skeptical that the resort will be the bonanza that the Tupper Lakers are hoping for but I hope I’m wrong. The law suit is really just sour grapes at this point especially seeing as the Sierra Club wasn’t even a party to the original process and the land owners seem to be concerned primarily about their selfish interests.

Of course suing and counter suing is one of the cornerstones of the USA and I agree that it is not always a bad thing. It is part of the “rule of law” that has made America exceptional but just like democracy it does get messy and frustrating at times.